Fair Work Commission rules it’s ok to Sexually Harass co-workers at the Christmas after party (any good pub will do).
CASE : Keenan v Leighton Boral Amey NSW Pty Ltd  FWC 3156
Mr Keenan was dismissed for sexual harassment after a work Christmas function.
Keenan got drunk and some of his choice words for the night he told a director to “fuck off”, a senior female colleague “who the fuck are you?” repeatedly asked for the phone number of another female colleague.
The Christmas after party continued at a public bar and Keenan made the decision to party on:
He tried to touch the face of a female colleague saying “I used to think you were a stuck up bitch but Ryan says you are alright. If Ryan likes you then you must be ok”, he grabbed and kissed a female coworker on the lips and then told her that he would be dreaming about her later that night and said his mission for the evening was to find out what colour underwear she had on.
HELD : Mr Keenan was unfairly dismissed. The after party was not arranged by the employer and was not within the “place of work”
“I do not consider the conduct, which occurred at the upstairs bar can be said to be in connection with Mr Keenan’s employment. The social interaction, which occurred there, was not in any sense organised, authorised, proposed or induced by LBAJV. Those who gathered there did so entirely of their own volition. It was a public space… Mr Keenan’s conduct in the upstairs bar was merely incidental to his employment.”
The Commission held it was “abundantly clear” kissing the female colleague was sexual harassment but it lacked the required connection with employment (because it occurred after the function had finished) to establish vicarious liability and reputational damage.
The Commission held the termination was harsh and unjust. It suggested a better response would be to demote Mr Keenan, issue a final warning, require a written apology and/or ban him from future work functions where alcohol was involved.
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